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 Shabbat Parashat Noach | 5764P’ninat MishpatThe Laws of Returning Lost Articles - Part II - Keep, Return, or Watch
The first two mishnayot of Elu Metziot contrast similar cases of found items with small but significant differences between them. The first mishna lists cases where the objects “are his [the finder’s].” The second mishna lists those that “he is required to announce” so that the owner who lost something can identify his object.
These mishnayot identify the extremes of the possibilities when an object is found. Optimally, the finder will have the opportunity to fulfill the mitzva to return the object to its proper owner. He has to go to significant trouble, classically including a public announcement that the item has been found in order that it can be returned. (Kiryat Sefer, G’zeila Va’aveida 13 infers from the Rambam that the law that you have to announce the object is from the Torah, but it is not clearly evident what pasuk isthe source.) It would seem that the whole point of the process is predicated on the assumption that the owner may receive his property back. If this is not possible, it would seem that there is no reason that the finder should not be able to keep it himself. However, this is not so.
In order for the finder to be able to keep the object for himself, there must be something that uproots the original owner’s ownership. The most common situation which causes a loss of ownership is yeiush (giving up- the feeling of the owner that he has little chance of getting the object back) (Bava Metzia 21b). There are a few elements necessary in order to assume that yeiush has occurred and affected a change, and we hope to discuss them in the future.
If the finder picks up the object, and it turns out that he has no way to find the owner, but yeiush was unable to remove the original ownership, then a third situation comes into effect. That is the obligation to safeguard the object (see Tosafot, Bava Metzia 25b). This situation is actually described in relative detail in the Torah, in the following pasuk. “If your brother is not close to you and [or] you do not know him, you shall gather it into your house, and it shall be with you until your brother seeks it out, and you shall return it to him” (Devarim 22:2). An exception is in cases where keeping the object for an extended period of time will cause a loss to the owner (for example, it is an object that deteriorates or causes more expenses than is worthwhile). In such a case, the finder should sell the object and keep the money available to potentially return to the owner, should he be able to prove that the object had been his (Bava Metzia 28b).
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